State ex rel. Howard's Adm'r v. Rollins

• Decision Date: 31 January 1860
• Citation: 29 Mo. 267
• Parties: STATE, TO USE OF HOWARD'S ADMINISTRATORS, Defendants in Error, v. ROLLINS et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

29 Mo. 267

STATE, TO USE OF HOWARD'S ADMINISTRATORS, Defendants in Error,

v.ROLLINS et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Where a county collector advances to the treasury the whole amount of taxes chargeable against him as collector, and dies before the expiration of his term of office with a portion of the taxes delinquent, his successor in office is not bound, in his official capacity as collector, to collect such delinquent taxes for the benefit of the representatives of the deceased collector. He could not be held liable on his official bond for collecting and not paying over such delinquent list. If he should collect the delinquent list of his deceased predecessor, it would be as agent and not in his official capacity as collector.

2. The representatives of a deceased collector, who had made an advance of the taxes to the treasury, have a lien for the delinquent taxes, as provided by the fifty-fifth section of the third article of the revenue act of November 23, 1857. (Sess. Acts, 1857, Adj. Sess. p. 91.)

Error to Moniteau Circuit Court.

The facts sufficiently appear in the opinion of the court.

Parsons & Ewing, for plaintiffs in error.

I. The court erred in overruling the demurrer. Howard, having paid the tax of the state, was substituted in place of the state, and had a year from that time to collect the money in. He was collecting for himself, not for the state; he was not accountable to the state for what he collected. His legal representatives were entitled to the same as assets of his estate. They had a right to employ agents to collect the same. They authorized Rollins to collect the unpaid taxes. Howard's administrators have a right to sue. But the collector and his securities are responsible on his official bond only for his official acts. This suit is on the bond. It can not be maintained.

Douglass & Hayden, for defendants in error.

I. Rollins, as collector, was entitled to the possession of the tax-book. The administrators of the deceased collector were compelled by law to hand over the tax-book at once to the successor. It being in the legal possession of Rollins, the administrators of the deceased collector could not collect the taxes. The law, then, contemplates that the successor of a deceased collector shall collect the taxes advanced to the state treasury. The law requiring him to collect, he is responsible on his official bond if he fail to pay them over to the persons entitled to receive them. The taxes were collected by Rollins colore officii. (24 Mo. 552; 13 Mo. 437; 11 Mo. 447; 17 Mo. 486.)

EWING, Judge, delivered the opinion of the court.

This was an action against Rollins and his sureties on his official bond as collector of Moniteau county. The petition alleges that Howard, the predecessor in office of Rollins, was elected in 1856, and died in February, 1858, having paid to the state, in December preceding, the whole amount of revenue with which he stood charged--the amount so paid having been advanced by him, for which he had the statutory lien on the property chargeable with the taxes; that Rollins was appointed in March, 1858, to fill the vacancy, to whom plaintiffs shortly thereafter delivered the tax-book which had been received by his intestate, showing the sum of $1,075.46 uncollected state taxes, who executed his receipts therefor. The petition then avers the collection of the taxes by Rollins and a breach of his bond in the usual form, in failing to pay the same to plaintiffs. There was a demurrer to the petition, which being overruled, defendants filed their answer, to which there was a replication; whereupon there was a trial by a jury, and verdict and judgment for plaintiffs. Motions for new trial and in arrest of judgment being overruled, defendant brings the cause here by writ of error.

The only material inquiry...